Reported Decision : (2001) 113 LGERA 260 Land and Environment Court of New South Wales CITATION : South Sydney City Council v Coe [2001] NSWLEC 32 APPLICANT South Sydney City Council PARTIES : RESPONDENT Coe FILE NUMBER(S) : 40118 of 2000 CORAM: Cowdroy J KEY ISSUES: Practice & Procedure :- Occupation of public land as a campsite or 'tent embassy' without approval - injunctive proceedings initiated by council - injunction granted - respondent thereafter seeking and obtaining council approval - discontinuance of proceedings by applicant - notice of motion seeking to set aside proceedings on grounds of abuse of process - whether injunctive proceedings constituted an abuse of process - nomination of appropriate respondent - claim to sovereignty - motion filed by respondent prior to discontinuance - motions dismissed. Environmental Planning and Assessment Act 1979 s 124(3) LEGISLATION CITED: Local Government Act 1993 s 68, s 697 Land and Environment Court Rules 1996 Pt 11 r 1 Anthony Victor Sahade v Mosman Municipal Council [2000] NSWCA 251; Burnley Borough Council v England (1977) 76 LGR 393; Gosford City Council v Popran Creek Pty Ltd (1995) 89 LGERA 208 ; Grainger v Hill [1838] 4 Bing (NG) 212; 132 ER 769 ; King v Henderson [1898] A.C. 720 ; CASES CITED: Mason v Ryan 10 VLR 335 ; Packer v Meagher [1984] 3 NSWLR 486 ; Peek & Anor v New South Wales Egg Corporation (1986) 6 NSWLR 1 ; Rajski v Bainton (1990) 22 NSWLR 125 ; Re Majory [1955] Ch 600 ; Sea Culture International Pty Ltd v Scoles and Ors (1991) 32 FCR 275 ; Stafford Borough Council v Elkenfor Ltd [1977] 1 WLR 324; [1977] 2 All ER 519 DATES OF HEARING: 27/11/00, 22/2/01 DATE OF JUDGMENT: 03/28/2001 APPLICANT Mr T Robertson (Barrister) SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr A Oshlack (Agent) SOLICITORS n/a JUDGMENT: IN THE LAND AND MATTER No. 40118 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 28/03/01 South Sydney City Council Applicant v Isabelle Coe Respondent JUDGMENT 1. On 17 August 2000 the Court delivered judgment in respect of an application ("the proceedings") of South Sydney City Council ("the council") for an injunction restraining the respondent from occupying Victoria Park Chippendale ("the park") for the purpose of establishing a campsite known as the Aboriginal Tent Embassy ("the embassy") without council approval. For the reasons set out in the judgment the Court determined that a prima facie case existed for the grant of interlocutory relief. An interim injunction was granted and then suspended until 23 August 2000 to enable the respondent to seek the necessary approval. 2. On 21 August 2000 the respondent filed a notice of motion ("the first motion") seeking orders that the council's application be struck out as an abuse of process. On 23 August 2000 the respondent made an application to the council for consent to occupy the park and on the same day the requisite consent was granted by the council. As a consequence of such consent the council purported to discontinue these proceedings by filing a notice of discontinuance although the respondent's motion had not been determined and the injunction was still in force. 3. On 31 August 2000 the council sought leave of the Court to revoke the notice of discontinuance to enable the existing injunction to be dissolved and thereafter to discontinue the proceedings. Such orders were then made without objection by the respondent. On 1 September 2000 Ms Coe filed a notice of motion ("the second motion") seeking orders, inter alia, that the notice of discontinuance be held invalid and that the proceedings be summarily dismissed with costs as an abuse of process. As the respondent's first motion was filed before the notice of discontinuance it is appropriate since Ms Coe was not legally represented, that the respondents motions be heard albeit that no objection was made by her to the discontinuance on 31 August 2000. 4. Mr Oshlack, the agent for Ms Coe was given leave to present Ms Coe's arguments. Respondent's submissions 5. Ms Coe gave oral evidence relating to the concept of the embassy. Ms Coe said it began in Redfern in 1972 and was thereafter established in Canberra as the symbol for the struggle for land rights. Ms Coe said that the embassy was brought to the park on 14 July 2000 because of the long association of the aboriginal people to the South Sydney area and 'to call attention for the need for the end of genocidal war, the interests of sovereignty and a furtherance of the peace process'. A ceremony known as 'the fire ceremony' was also brought to the park 'to start the healing for our people, our land and our nation'. Ms Coe said that the peaceful demonstration was intended to 'connect up the country', 'to maintain the struggle', and to promote the causes of the aboriginal movement. Ms Coe said that she acted as caretaker and testified that she had an understanding with the Newtown Police and that various senior officers of the police force including the Police Commissioner had visited the site and participated in the activities in the embassy. She explained that such activities had built a bridge of understanding for the first time between the police and the aboriginal people. 6. Ms Coe claims that the park was sovereign land belonging to the 'Aboriginal Nation' the use of which could not be challenged in any domestic court and was not subject to any laws which might seek to regulate its use. 7. Ms Coe said that when she was served with the application and affidavits which initiated these proceedings she felt insulted. Ms Coe said that she had done a great deal of work for homeless aboriginal children who were afflicted by drugs and had seen much pain and suffering, homelessness and desperation for members of the aboriginal race. Ms Coe said that she had participated in the establishment of the Aboriginal Legal Service, the Aboriginal Medical Service and a school but that the aboriginal community was still victimised. 8. Ms Coe said that she and the supporters were invited to remain in the park by representatives of the applicant. She testified that the Mayor, Mr John Fowler, the Deputy Mayor and other councillors had participated in the fire ceremony at the embassy, and that they had given active encouragement to the supporters of the embassy. 9. The respondent submits that the proceedings were therefore instituted without just cause. The respondent claims that the proceedings were commenced whilst negotiations with the council for the occupation of the park were pending and that the institution of proceedings was therefore unnecessary and lacked utility. 10. It is also submitted that the initiating process filed by the council is incompetent because no cause of action is identified nor does it specify the section of the Local Government Act 1993 which is alleged to have been breached. It is further submitted that the embassy should have been nominated as respondent, and not Ms Coe personally. 11. Finally, the respondent submits that the proceedings could not have succeeded because sovereignty existed over the area of the embassy by reason of the planting of a spear in the ground by an elder, known as Gubbo Thomas. The claim thereby made by the embassy to the land within the park is evidenced by the presence of the spear surrounded by sacred stones. The facts (a) Requirement for Planning Approval 12. Section 68 of the Local Government Act 1993 ("the Act") requires approval to be granted by the consent authority -in this case, the council- for certain activities. Those activities, as set out in the table to s 68 titled 'Approvals', relevantly include:- PART A - STRUCTURES OR PLACES OF PUBLIC ENTERTAINMENT 2. Install a temporary structure on land PART D - COMMUNITY LAND 6. Deliver a public address or hold a religious service or public meeting PART F - OTHER ACTIVITIES 2. Operate a caravan park or camping ground 13. Under the South Sydney Local Environmental Plan 1998 ("the LEP") the park is zoned 6(a) - Local Recreation. Pursuant to that zoning, development for all relevant purposes requires the consent of the council. 14. Although the respondent denies that the embassy is an activity which required consent, pursuant to either the provisions the Act or the LEP, the activities of the embassy prima facie constitute an activity for which consent was required. The tents comprised a temporary structure for the purposes of Part A par [2] of the Act as defined in the dictionary to the Act. Further, public meetings were being held for the purposes of Part D par [6] of the Act and the park was being used as a camping ground for the purposes of Part F par [2] of the Act. Each of these activities therefore required consent (see Gosford City Council v Popran Creek Pty Ltd (1995) 89 LGERA 208 at 214-215). (b) Role of Ms Coe 15. Ms Coe, and other supporters of the embassy, first entered the park on 14 July 2000. To the council's knowledge entry was for the purpose of participating in a weekend festival entitled 'The Mascon Festival' which was conducted by the council in the park and was designed to promote community development and awareness. The Festival coincided with National Aboriginal Day and the plantation of a 'Sea of Hands' as a demonstration of community support for the aboriginal peoples. 16. Ms Coe gave evidence of the welcome by the Mayor and by the signing of the visitors book by the Mayor and the Deputy Mayor and by Lola Scott, a senior officer of Newtown police. Ms Coe alleged that the Mayor informed her that it was 'only appropriate that the Embassy should be present to coincide to support the aboriginal peoples as demonstrated by the planting of the Sea of Hands'. However, the council asserts that support for the embassy did not extend beyond the duration of the Festival, and that welcome extended by certain members of the council was given with reference to the Festival and not for the purpose of granting an implied consent to the embassy. 17. On 21 July 2000 an aboriginal liaison officer for the council, Mr Daryl Wright, and Mr Grahame John Dearsley, a council officer, visited Ms Coe at the park and informed her that an approval from council to remain in the park was required. Ms Coe gave no commitment to apply for such approval. On 25 July 2000 Mr Dearsley again visited Ms Coe and delivered a letter from council which contained some suggested conditions that would be required. According to Mr Dearsley, Ms Coe stated that she would need to discuss the matter with other members of the embassy. Accordingly no acknowledgment was made by the respondent on that day that approval would be sought to occupy the park. 18. Later that day a document entitled 'Media Release' was issued by those engaged with the embassy. The media release demonstrated that council approval was considered by supporters of the embassy to be inimical to their claims for land rights. The media release quotes Ms Coe as follows:- Isabel Coe said, 'The document from South Sydney Council reminds me of the past genocidal policies of the aboriginal welfare and protection board' . And we invite all press to the meeting to South Sydney Council tomorrow morning Wednesday at 10 am. A flyer was available for distribution at the embassy which included the following words:- Show your solidarity at the Tent Embassy at Victoria Park until the Sydney Olympic Games. 19. On 26 July 2000 a meeting was held between the Mayor, Mr Dearsley, Mr Kenneth Brennan, the manager of the council's ordinance section and the respondent. During the meeting Ms Coe was asked whether an application for permission would be lodged. She again gave an inconclusive reply. 20. According to the evidence of Mr Dearsley another meeting was arranged to be held at the council chambers on 28 July 2000 between Ms Coe and the Mayor but Ms Coe failed to attend. Ms Coe denies any knowledge of such meeting but records of Mr Dearsley show that such meeting was scheduled as alleged. 21. By letter dated 1 August 2000 the Chairman of the New South Wales Aboriginal Land Council advised the council that it had not sanctioned the establishment of the embassy and did not support the establishment of the embassy in the park. Councillors were then briefed upon the options available to control the activities of the embassy and on 10 August 2000 the Mayor issued a media statement stating, inter alia, that legal proceedings were to be commenced. Findings relating to nomination of the respondent 22. Ms Coe does not deny that she put herself forward as a representative or spokesperson of those engaged in the embassy and the person with whom the council was to conduct their negotiations. Since the embassy has no legal status it could not have been nominated as respondent. Ms Coe was the logical respondent to any proceedings in the absence of any other identified person who might have exercised measures of control over the embassy. In her affidavit affirmed on 28 August 2000 she affirms as follows:- It has fallen to me by traditional birthright as a Custodian of the Wiradjuri Nation, mandated by The Wiradjuri Council of Elders and endorsed by the Local Eora People represented by their Traditional Custodian Elder, Mr. Herbert Simms that permission was granted for me to give my support to the establishment of the Aboriginal Tent Embassy in Victoria Park until the end of October 2000. The leading role of the respondent is further evidenced by the subsequent events, namely the fact that on 23 August 2000 Ms Coe signed the application for the requisite permission to occupy the park. 23. Where evidence establishes a breach or potential breach of the provisions of the Act, the Court is empowered, inter alia to grant restraining orders against a person or persons who are in a position to cure that breach. In Anthony Victor Sahade v Mosman Municipal Council [2000] NSWCA 251 Stein J said:- The Court's power to grant a remedy in civil enforcement proceedings is dependent on proof that the breach has been committed or, unless restrained, will be committed. It is not dependent on proof that the respondent to the proceedings committed the breach. Nonetheless, in determining whether to make an order to remedy or restrain a breach, and the ambit of any order, the Court will need to be satisfied that the person to be bound by the order is in a position to remedy or restrain the breach. In the circumstances of this case Ms Coe was such a party. 24. Further the council relies upon s 697 of the Act which entitles the Court to draw the inference that the respondent was using that portion of the park without approval by herself, her servants or agents whether or not she was in direct control of the embassy. Section 697 of the Act provides inter alia:- 697 In any prosecution or other legal proceeding under this Act or any other Act instituted by or under the direction or on behalf or for the benefit of the council, proof is not, until evidence is given to the contrary, to be required of any of the following:- · the fact that the defendant is or at any relevant time was the owner or in possession, control or charge of any animal or thing in question. 25. Although Ms Coe complains that she was 'victimised' since there was no occasion for her to be nominated as the respondent, this claim cannot be supported by the evidence. In her participation in meetings with the Mayor she acted as the representative of the embassy and in the media release she nominated herself as the 'Media Contact' for the embassy and provided a mobile telephone number. Ms Coe was therefore clearly speaking on behalf of those engaged in the encampment. The council was justified in nominating Ms Coe as respondent as one who was in control or in charge of the embassy. Findings on the initiating process 26. The respondent claims that the proceedings were wrongfully instituted since she was not aware that negotiations with the council for permission to remain at the park had broken down. 27. Ms Coe claims that she was not aware of a media release issued by the council on 10 August 2000 anticipating the institution of these proceedings until approximately two weeks after the release was issued. However, taking into account the fact that the tent embassy was gathering media interest from Australia and overseas, and that Ms Coe was issuing media releases in relation to the very subject matter of her claim, such a submission cannot be accepted. In any event, Ms Coe's knowledge of the press release is immaterial. The Court is satisfied that council's requests that approval for the embassy be sought and threats of litigation made no impact upon the resolve of the respondent. The claim of the respondent was clear, namely that sovereignty existed over the park and that there was therefore no need to seek approval for the tent embassy. It was for this reason that negotiations conducted by the council over a three week period with the respondent to secure her co-operation had proved fruitless. 28. Section 673 of the Act specifically provides that a council 'may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act'. Section 672 of the Act defines 'a breach of this Act' as including:- (i) a contravention of or failure to comply with this Act, (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act. 29. When a council seeks to enforce the requirements of planning laws it is fulfilling its statutory responsibility (see Peek & Anor v New South Wales Egg Corporation (1986) 6 NSWLR 1 at 5-6). There is no requirement that the applicant nominate the legal basis for the relief claimed provided the accompanying evidence states such basis as was done in this case. Accordingly, the council possessed the requisite basis for initiating the proceedings. 30. It was also argued by the respondent that a penalty, by way of fine, could have been imposed rather than proceed by the initiation of civil proceedings in this Court. However the council is not limited to the application of a penalty by way of a fine particularly in those instances where the evidence prima facie shows a conscious decision to flout statutory requirements (see Peek, per Kirby P at 2-5). Council had the option to enforce the requirement for permission to occupy the park by way of a fine or by the initiation of civil proceedings. However where evidence establishes that a breach of a statute will encourage others to do so, a fine need not be imposed before invoking the injunctive jurisdiction of the Court (see Peek, per Kirby P at 5; see also Slade J in Burnley Borough Council v England (1977) 76 LGR 393; cf Lord Denning MR in Stafford Borough Council v Elkenfor Ltd [1977] 1 WLR 324 at 329; [1977] 2 All ER 519 at 517). There is no evidence which establishes that the council acted unlawfully in proceeding by way of instituting civil proceedings rather than by imposing a fine. Accordingly this claim fails. Findings in relation to claim for sovereignty 31. Several domestic courts have determined claims for land rights by aboriginal claimants. No land rights claim has been made or determined in relation to the park and these proceedings are not concerned with land rights to the park as alleged by the respondent. These proceedings are solely concerned with whether the actions taken by council in launching these proceedings were an abuse of process. In the absence of a determination confirming the existence of land rights the council was justified in seeking to enforce the relevant planning laws. Findings as to whether there was an abuse of process 32. The embassy had been established on or about 17 July 2000 and was rapidly expanding. By 9 August 2000 twenty five tents of varying sizes had been established in a campsite accompanied by open fires. The embassy was located beside major roadways in a park widely used by members of the public and located adjacent to a university. Numerous complaints had been received concerning its existence and disruptions caused by its presence. No application for permission had been made by the embassy despite the attempts by council to obtain co-operation from the respondent. Simultaneously Ms Coe was inviting the media and the public to visit the site and to support the cause of the embassy. 33. The inference can readily be drawn that Ms Coe and her supporters had no intention of applying for the requisite planning permission from the council. The Court is satisfied that the conciliatory gestures of council were repeatedly rebuffed and that the council was justified in concluding that the inaction by the respondent and her supporters warranted the commencement of legal proceedings. 34. Considered in the light of the above facts, there is no basis for the assertion that the proceedings were unmeritorious and 'brought merely in order to put pressure on the respondent' (see French J in Sea Culture International Pty Ltd v Scoles and Ors (1991) 32 FCR 275 at 279). Nor was the council seeking to 'fraudulently defeat the rights of others' (see Lord Watson in King v Henderson [1898] A.C. 720 at 731). There is no evidence that the proceedings were a 'perversion of justice' (see Mahoney JA in Rajski v Bainton (1990) 22 NSWLR 125 at 157). The Court is unable to find any basis for any alleged abuse of process. The institution of the proceedings was justified and vindicated by the application for the necessary approval being sought by the respondent on 23 August 2000. Findings in relation to the notice of motion 35. Following the institution of these proceedings by the filing of the application by council on 11 August 2000 the Court granted interlocutory orders on 17 August 2000 and stayed such order to enable the respondent to seek the requisite grant of consent. Section 124(3) of the Environmental Planning and Assessment Act 1979 specifically envisages such circumstance. It provides:- (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may - (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent; and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. Finding on discontinuance 36. The council submits that the discontinuance is valid. In filing its notice of discontinuance, the council has exercised its right to terminate the proceedings for its claim. Part 11 Rule 1 of the Land and Environment Court Rules provide:- A party may at any time discontinue any proceedings brought by the party so far as concerns the whole or any part of any claim by the party. 37. The second motion raises the question whether the filing of the notice of discontinuance per se constitutes an abuse of process. Although this Court is one created by statute it is invested within inherent powers, including power to correct any abuse of process (see Mason v Ryan 10 VLR 335 (Full Court) Higinbotham J at 340). 38. For the reasons provided above, the Court has now considered the respondent's claim, and found that no basis exists to support the assertions that the proceedings were for a purpose other than those for which they were properly designed (see Re Majory [1955] Ch 600 at 623), or to 'effect an object not within the scope of the process' (see Hunt J in Packer v Meagher [1984] 3 NSWLR 486 at 492; see also Grainger v Hill [1838] 4 Bing (NG) 212 at 221; 132 ER 769 at 773). 39. There being no abuse of process in the institution of the proceedings or in the discontinuance both notices of motion are dismissed. Costs 40. The council does not seek any order for the costs of the proceedings nor any order for the costs of the motions. Orders 41. The Court orders:- 1. That the notices of motion filed by the respondent and dated 21 August 2000 and 1 September 2000 be dismissed. 2. The exhibits be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.